Possible legal remedies for online reputation issues are still up in the air, explains contributor Chris Silver Smith, arguing that it may be time to amend the applicable legislation.

Google’s recent freeze on granting defamation removal requests has thawed a little. Even so, the company’s actions around harmful and dishonest items attacking the reputations of individuals and organizations continue to be mystifyingly inconsistent.

In this column, I’ll share some facts and thoughts on how defamation victims should proceed given the current environment.

Before I start, let me first take a moment to disclose that I work in the online reputation management field. In my previous article on this subject, one online pundit claimed that I’d failed to disclose that I do so “in the normal place for such disclaimers,” though I mentioned working on such cases in the text of the column.

While this critic did not point out anything that I had written that was erroneous, he implied that my points should be either discounted or suspect because I work to help people manage and repair their reputations online.

Actually, despite my somewhat passionate railing against Google on behalf of online defamation victims in that earlier article, I stand to profit if Google halts removals because my firm makes money by helping people manage their online reputations using search engine optimization (SEO) and other tactics that aren’t necessary when removals occur.

The background on the freeze

As I outlined a little over a month back, Google essentially halted processing of defamation removal requests, even when accompanied by duly executed court orders specifying URLs containing defamatory content.

I learned this by polling a number of the attorneys across the US that specialize in defamation cases and using court orders establishing content as defamatory as a means of petitioning Google to remove the URLs from their search results. For perhaps as long as a decade now, this process has provided relief to people who really had no other options for removing damaging and untrue representations about themselves from highly-prominent visibility.

According to the attorneys I polled (some of whom showed me communications directly from Google), at that time, Google had largely suspended all new removal requests.

Google thaws. A little.

Since writing that article, there seems to have been a slight thawing on the part of Google’s removal evaluation team. Attorneys are now reporting that a few requests are now being acted upon — some of which were previously denied by Google.

Unfortunately, other requests are still being declined, and Google continues to refuse to communicate what they will or will not do, or why they previously denied some requests and then subsequently elected to fulfill them.

Here are just a few examples of cases these attorneys told me about in which Google has declined to act:

A company spent two years and several hundred thousand dollars pursuing a court order establishing defamation on a Ripoff Report Page in order to petition Google to remove the URL.

A real estate agent was defamed and harassed for months via weekly posts by a person in a dispute with them over rent payments. These posts falsely accused the real estate agent of being a criminal, and the defendant made other misrepresentations via online reviews. The real estate agent sued in a typical court process that was pending for over a year, and it was established that the IP address responsible for the defamatory content was connected with the defamer. Subpoenas had been issued, but before records were received, the defendant admitted to posting the content, and, on this basis, a court order was obtained identifying the material as defamatory. Google initially agreed to remove the URLs, but some were not removed due to a clerical error wherein a character was missing from the links. After this error was pointed out, and after months of communications, Google then requested more information to prove the defendant wrote the items. Eventually, Google denied the removal request despite both the attorneys for the plaintiff and the defendant repeatedly offering to provide additional information. Subsequently, Google reinstated the links they had earlier removed.

An ALS charity and its founder were attacked online by someone who had a personal grievance against the founder. Though the postings did not directly allege any malfeasance on the part of the charity, its reputation, along with the founder’s, has been damaged. The charity, which has helped many people afflicted with ALS in the past 10 years, continues to be impacted by the defamatory content — likely damaging its fundraising and therefore indirectly keeping needed assistance from people suffering from ALS and their families.

A company, its owner and the owner’s wife were defamed by a disgruntled investor who hid their identity and published websites, YouTube videos and a Ripoff Report. The attorneys for the harmed parties discovered who posted the information by obtaining the person’s IP address information, then sued the defamer and obtained a court order. When the removal request was initially submitted, Google denied it with no explanation. Then, when it was resubmitted, Google requested further evidence proving the defendant had been properly served notice, which was done in person via a court process server. Then, Google demanded evidence that the defendant wrote the Ripoff Report content, since the defendant had removed all of the other items. The attorneys provided the IP evidence from both the Ripoff Report and a YouTube video that was subject to the court order — both showed the same user’s email address and the IP address that was used. Google then summarily denied the request without any explanation.

For a look at the other side of the coin — requests with which Google complies — we can examine yet another case. In this instance, a woman was defamed and cast in a false light by someone who posted on numerous URLs accusing her of having an affair with the accuser’s husband, in some cases even sharing a photo of the woman. Google previously had denied the removal request, and then in mid-February, agreed to remove most of the content specified. Postings that Google agreed to remove from its results included posts on Ripoff Report, Pissed Consumer and USAComplaints.com.

Confusion makes decision-making in such cases very difficult

For defamation victims and attorneys that represent them, this situation continues to be confusing and upsetting. Without some sort of consistency, it is quite difficult to determine whether it will be advisable to undertake expensive litigation proceedings.

Imagine someone has anonymously vilified you or your business online, with dozens, hundreds or even thousands of items published that misrepresent you. The legal process to handle the issue goes something like this:

You must go before a court to obtain a subpoena to get information from the publisher.

That information may not identify the person doing the posting, so you may have to go back before the judge to obtain a subpoena for the ISP that operates the IP address associated with the content creator.

You discover the person connected with the IP address, and then you take them to court to establish that they harmed you with false representations.

Once you obtain an injunction to stop them from continuing to defame you, and a court order establishing the things they posted were false and defamatory, you then take it to the websites and to Google and ask them to remove these items.

Some websites are outside of US jurisdiction and will simply ignore you. Other sites, like Ripoff Report, opt to do nothing because US law doesn’t require it. And Google may or may not decide to remove the URLs.

You may have spent tens of thousands, or even hundreds of thousands of dollars, to obtain relief at this point, only to be denied by Google without receiving any explanation.

As I explained in the previous article, one can see why Google chooses to perform some assessment of the removal requests they receive to ensure everything is valid, and because there have apparently been cases of fraud perpetrated on the courts, Google seems to be performing an audit of each court order to determine whether those accused of defamation have been adequately identified and notified of court proceedings, whether the identified prohibited content is residing at URLs identified in court orders, and more.

In my opinion, Google would be better off leaving such issues to the courts — which should be verifying these things during the process. Meanwhile, the persons who have perpetrated fraud upon the courts should be held accountable and face criminal charges. But the actions of a few bad apples shouldn’t be allowed to spoil the barrel for everyone.

One may understand Google’s reticence in disclosing certain secrets. The company’s search engine algorithms, for example, are trade secrets. But the process and policies for evaluating legal requests are arguably an entirely different matter — a matter in which Google professes the desire for transparency by issuing regular “Transparency Reports.” To be fully transparent, Google ought to clearly communicate what criteria they will base their decisions upon. As one attorney specialized in defamation cases told Google, individuals can lose their businesses, their careers, and ultimately, their lives due to online reputation attacks.

Yes, there are legitimate free speech issues that sometimes come into play, as well as the previously mentioned fraud against the courts, but the little guys with comparably far fewer resources are the underdog victims in need of advocates in this matter. US laws that allow many websites to distribute content without having the responsibility to remove defamation — specifically Section 230 of the Communications Decency Act — have created a situation where many individuals and businesses are harmed, with zero recourse.

There were reasonable means of obtaining relief via legal process prior to the growth of the internet which do not seem to have been preserved in the virtual space. Google’s policy of acting upon defamation removals in the past has been something of a relief-valve on the situation, but, now that it is undependable, it may create a groundswell of support for pushing some legislative or judicial adjustment.

What should victims do now?

As you can see from the descriptions of some cases outlined above, your situation may be very compelling, and it may be supported by a clean and valid legal process with clear-cut proof, but all that may not be sufficient to guarantee that Google will remove the links to defamatory content.

If you’ve already been denied by Google in recent months, you may continue to periodically petition them to reconsider and try to provide any materials possible to demonstrate that you followed proper processes and have established the damaging material should not be allowed to stand.

If you have not yet gone through a lawsuit to obtain a court order for defamatory content, you need to realize that your chances of success may be limited at this time if the content is posted on a site that will obstinately refuse to remove it. If you’re dealing with ISPs and websites that are not protected by Section 230, or which are directly responsible for the content, you might be able to get the stuff removed at the source and ask Google to update its crawl and remove the no-longer-existent URLs from search.

It’s clear that this situation is still evolving. Defamation victims may still get relief through the legal process, and it may be worthwhile to start your journey toward getting a court order now, since litigation often requires months to get to the goal line, and there are statutes of limitation involved.

Consult with your attorney to determine the relative merits and potential of success for your specific case.

As this situation evolves, perhaps things will stabilize once more, one way or another. Until then, just realize that you are rolling the dice if you move forward with a suit.

Opinions expressed in this article are those of the guest author and not necessarily Search Engine Land. Staff authors are listed here.